Silky Gates Did It! Defendant should have been allowed to point the finger at someone else.

Terry Johnson v. United States (Decided April 14, 2016)

Players: Judges Glickman and Thompson, and Senior Judge Farrell. Opinion by Judge Glickman. PDS for Mr. Johnson. Trial Judge: Herbert B. Dixon, Jr..

Facts: A masked man shot and killed Andre Wiggins in broad daylight. Nobody could identify the shooter. The government’s case against Terry Johnson turned on the “pre-existing enmity” between him and Wiggins. Indeed, the government argued Mr. Johnson was the “only” person who had a motive to kill Wiggins. As it turns out, that was not true. The defense proffered two other people’s beef with Wiggins—Silky Gates and Quannine Payne. Wiggins had pistol-whipped and robbed Mr. Gates days before the murder—a fact the government knew about but failed to disclose to the defense until five weeks before trial. And Wiggins robbed Mr. Payne of his motorbike shortly before the murder. The trial court precluded the defense from introducing the third-party perpetrator (aka Winfield) evidence, deeming the proffers “too speculative.”

The defense thereafter asked the trial court to admit the Silky Gates Winfield evidence as a Brady sanction for the government’s belated disclosure of the evidence. The court refused to impose sanctions finding it would be “incongruous” to allow Mr. Johnson to present a Winfield defense for this Brady violation after it had already decided the defense’s proffer was insufficient to present that defense. The court also denied sanctions because Mr. Johnson already knew about Gates’ motive to kill Wiggins independent of the government and thus it was not prejudiced by the belated disclosure.

Issue 1: Was it error for the trial court to exclude the Winfield evidence?

Holding 1: Yes. A defendant has a constitutional right to present Winfield evidence. For it to be admissible, the evidence “need only tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense.” When a Winfield defense is based on a third party’s motive, the defense must also proffer the person had the “practical opportunity” to commit the crime, meaning the third party had at least “inferential knowledge” of the complainant’s whereabouts. Mr. Johnson’s proffers satisfied the test for admissibility; moreover, the trial court was required to “resolve close questions of admissibility in this setting in favor of inclusion, not exclusion.”

Issue 2: Were the trial court’s reasons for not imposing Brady sanctions erroneous?

Holding 2: Yes. The Court found that the Silky Gates evidence was admissible and material and thus the government was required to disclose the evidence under Brady. That Mr. Johnson learned of Gates from another source “does not get the government off the hook for its tardiness.”

Notes: The trial court also precluded the defense from cross-examining a jailhouse snitch, who was attempting to curry favor from the government based on his testimony in this case, about the lies he had told police during the investigation of his own murder case. The DCCA held that preclusion of this line of cross was error because these past falsifications were relevant and admissible to show testimonial bias because they demonstrated the snitch’s willingness to lie to avoid punishment.  DH

Read full opinion here.